On September 26, 2017, the Birmingham City Council passed an ordinance that makes it a crime for any entity doing business in the city to discriminate based on race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance passed unanimously and is the first of its kind in Alabama.

In announcing the measure, the City Council took a bit of defiant tone, noting that Birmingham had to act since the state legislature was unwilling. It remains to be seen if the state legislature will try to take steps to pass legislation prohibiting Birmingham and other cities from passing such ordinances.

The City also created a local human rights commission to process and try to resolve such complaints. If the matter cannot be resolved, an employee must swear out a complaints in criminal court. The criminal court has the power to order a fine, but not reinstatement or back pay.

A few weeks ago, we posted that employers could fire Neo-Nazis who participated in the Charlottesville protests. As we noted, we were just looking at First Amendment rights and that employees may have more protections under state laws.

My partner, Nancy Yaffe, has a written a thoughtful blog post on those state protections that might come into play. For a more detailed discussions of those protections, please check out her blog post.

The devastation in Texas is breathtakingly sad. Although the storm has passed, recovery efforts continue. For many, it will take months and years to recover.

Today I received my first call from a client asking about its obligations towards an employee who will be traveling to Texas to help with the recovery efforts. Many states do have laws that protect first responders from being disciplined or terminated for missing work while responding to an emergency.

New Jersey, for example, is one such state that has a law that provides that an employer cannot “terminate, dismiss or suspend an employee who fails to report for work at his place of employment because he is serving as a volunteer emergency responder during a state of emergency declared by the President of the United States or the Governor of this State.”

Under the New Jersey law, a volunteer emergency responder is defined as “an active member in good standing of a volunteer fire company, a volunteer member of a duly incorporated first aid, rescue or ambulance squad, or a member of any county or municipal volunteer Office of Emergency Management, provided the member’s official duties include responding to a fire or emergency call.”

In the last few days, President Trump has declared a state of emergency in Texas and Louisiana. As such any New Jersey volunteer emergency responder who is traveling to aid with the Hurricane Harvey recovery efforts may be entitled to leave.

The leave does not have to be paid. Employees may be able to use available or vacation days while out on leave, but cannot be forced to use such time.

The bad news for employers is that the law does not provide a limit on the amount of work that can be missed by the employee. Many other jurisdictions besides New Jersey provide similar protections. Employers with questions about first responder leave are encouraged to contact employment counsel.

For those wanting to help victims of Hurricane Harvey, Consumer Reports and the New York Times have written some helpful guidance on avoiding scams, as well as listing some charities that are in the best position to help.

Second, let us address a question that is appearing on a lot of social media threads — can/should the Neo-Nazis who participated in Saturday’s protest be fired from their jobs?

“Should” they be fired is not really a question we can answer. That is certainly up to each individual’s employer.

Can they legally be fired? The short answer is yes.

It appears that many people who were outraged about Saturday’s rally by white supremacists have taken to using online sources to “out” the identities of those present at the rallies. There is already a report of at least one employer who has terminated one of the individuals identified as being at the rally.

Generally speaking, the First Amendment protects speech from government action. Similarly, its right to free assembly is a right to be free from government interference. It simply does not apply to private employers.

Employees of public employers do have First Amendment rights, but those rights are not unfettered. Without going into a dissertation on Constitutional law, the case law provides that speech is only protected if they are commenting as a private citizen on a matter of public concern. See, for example, Pickering v. Board of Education, 391 U.S. 563 (1968).

There certainly is an argument that raising a Nazi salute or chanting derogatory statements about Jews and people of color is not speaking about a matter of public concern. Even if it is, the Pickering case requires courts to balance the interest of the employee in speaking against the employer’s interest in not undermining its mission. Courts have held that permitting racist speech of employees causes the public to lose faith in the public employer and thus is not protected.

In short, if any private employer wishes to fire any of the individuals who have been identified as participating in the white supremacist rally, they can legally do so. Likewise, public employers probably will also be able to do so without running afoul of the First Amendment.

One big caveat: this is really only a discussion of First Amendment protections. Some states have laws that might protect employees who engage in off-duty political expression. Employers are still advised to consult with legal counsel before taking action in cases such as these.

In a portentous opinion, Massachusetts’ highest court held that a medical marijuana patient terminated for failing a drug screening could state a claim for disability discrimination against her employer. Because many states’ medical marijuana laws contain the similar language to that which the court relied on, employers outside of Massachusetts should take note.

The facts are relatively unremarkable. The plaintiff had told her prospective employer that she had been prescribed medical marijuana to treat her affliction with Crohn’s disease, but that she did not use it daily and would not use it before or during work. On the evening of her first day of work, the company’s HR representative notified the plaintiff she was terminated for failing the pre-employment drug screening because the company “follow[ed] federal law, not state law.” The plaintiff sued for, among other things, disability discrimination under state law.

In reversing the trial court’s dismissal of the discrimination claims, the Massachusetts Supreme Judicial Court premised its decision on a provision of the state’s medical marijuana law stating that a qualified person “shall not be . . . denied any right or privilege,” for use of medical marijuana. Essentially, the Court held that because a waiver of the employer’s policy excluding persons who test positive for marijuana could have been a reasonable accommodation, the employer’s refusal to engage in the interactive process constituted a denial of the plaintiff’s rights not to be fired because of a disability and to require a reasonable accommodation under the state’s anti-discrimination law.

The Massachusetts court was not persuaded by the employer’s argument that its drug testing policy, not her disability, was the basis for the termination. The Court analogized an employer policy prohibiting marijuana to one prohibiting insulin and explained that reliance on a company policy prohibiting any use of marijuana to terminate an employee whose disability is being treated with marijuana effectively denies such employee the opportunity of a reasonable accommodation.

Although no other high court had previously reached a similar conclusion, few cases have been brought under disability discrimination laws in states whose medical marijuana laws prohibit the denial of rights and privileges to patients. For example, New Mexico’s law contains such a prohibition, but it only applies to practitioners. New Jersey, on the other hand, clearly extends the prohibition to patients.

It is also significant that the Court also rejected the employer’s argument that the state’s medical marijuana law did not require “any accommodation of any on-site medical use of marijuana in any place of employment.” Instead, the Court found that this statutory language implicitly recognized the existence of an accommodation for off-site medical marijuana use. Again, many states’ medical marijuana laws are worded in a similar manner and are susceptible to a reading that would permit an accommodation that does not require an employer to tolerate on-the-job use.

Of course, because this was a motion to dismiss, the Court recognized that the employer could ultimately prevail on summary judgment by showing that a use accommodation would be an undue hardship. Nonetheless, given that ninety percent of states have passed some form of medical marijuana law – a fact the Court cited in rejecting arguments that the federal scheduling of the drug demonstrates no recognized medical benefit – employers can bet that this case could inspire similar suits in states with similar statutory language. Keep an eye on this space, and Fox’s Cannabis Law blog for further developments.

Today’s post comes to us courtesy of Justin Schwam, an associate in our Labor and Employment Group in the Morristown office

I am sure that a lot employers lost productive work time yesterday with the Comey hearing. I must admit that I did not watch the Comey testimony yesterday. I actually had a busy day and was afraid of getting sucked down the rabbit hole. I do intend to catch up on it. If you are so inclined, the New York Times has the full video and a transcript of the testimony.

I did read the seven page statement Comey released in anticipation of his testimony. That seven page document detailed the meetings Comey had with President Trump and most shockingly, the statement that he felt compelled to start notes of the meeting on a laptop in his car immediately after leaving the White House.

Although the notes themselves are not conclusive proof, they could go along way in proving his claims. Some may say that Comey was being needlessly paranoid, however, he did exactly what I wish all managers would do. He saw an issue and he documented that issue.

Too often, whether I am simply being asked to give advice or I am trying to defend a lawsuit, I hear from managers that the employee was a terrible employee who had been spoken to on multiple occasions. However, there is no documentation that corroborates that.

I do understand that some discipline and counseling will be verbal, but managers should still take notes of such meetings. If for no other reason than when you are sitting down to do more formal discipline, you will be aware of what was discussed and on how many previous occasions.

The second thing that Comey did that managers should do is share the documentation. He wrote that he showed his notes to senior FBI officials as soon as he wrote them. This makes it harder to argue that the notes were not contemporaneously made.

Once counseling or discipline is documented, the manager should forward that documentation to HR to be placed in the employee’s file. This will go a long way to defending the company and employer in any later litigation.

This is not a post about any of the activities of the Trump Administration even though the headline uses his catch phrase. We are taking a break from our multi-part series of commenting on the investigation of Trump’s ties to Russia to address a completely different topic. Retaliation. (Okay, maybe not a totally different topic depending on what really was the reason for Director Comey’s firing).

Law 360 is reporting that a former Giants’ defensive lineman is suing his former employer Home Towne Rx Pharmacy for firing him after he reported that two female employees had allegedly been sexually harassed by one of the company’s executive vice presidents.

At this point, we literally know nothing about the case as we have not even seen the complaint. However, according to the report, the complaint alleges that Leonard Marshall was fired only a few weeks after reporting that the women were complaining of harassment by the executive vice president. It also alleges that the CEO of the company explicitly told Mr. Marshall that he was being fired for raising the complaint and spreading false claims against the other executive.

In my over 20 years of litigating employment discrimination claims, I can tell you that there are always two sides to every story, and sometimes more. Even if the allegation that he was explicitly told that the complaint was the reason for his termination is false, at the least, the timing of Mr. Marshall’s termination should have given the company pause about whether they were justified in terminating his employment and whether that justification could be backed up by anything in writing.

If the allegation is true, the same question about documentation should be raised. For example, if the company did an investigation of the claims of harassment and found that Mr. Marshall and/or the women were making up the allegations, how did the company come to that conclusion? Is it just a he said/she said situation or are there emails, texts, or other documentation that show the claims are false?

There are certainly cases where an employee or witness involved in a harassment investigation lies and a company is thus justified in firing that employee. However, employers should tread very lightly in disciplining the complaining employee or a supporting witness for lying in the investigation. In such cases, if I am counseling a client, I want to see more than it was a “feeling” that they lied. I also want to see more than a bald assertion from the accused that it is all made up lies. (Oh, look at that, maybe we did not take a break from commenting on politics after all.)

Employers need not panic. This does not mean you have to ignore your employee toking in the bathroom or ignore a positive drug test simply because the employee has a medical marijuana card.

The law does contain a broad anti-discrimination provision prohibiting an employer from taking an adverse action against an employee solely because that person possesses a medical marijuana card. However, the law specifically says that no employer must make an accommodation for the use of medical marijuana in the workplace and employees can be disciplined for being under the influence of marijuana at work.

The law also makes it illegal for any patient to operate or be in physical control of any of the following:

chemicals which require a permit from a state or the federal government;

high-voltage electricity or any other public utility; or

vehicle, aircraft, train, boat or heavy machinery

The law also states that a patient may not perform employment duties at heights or in confined spaces, including mining, while under the influence of marijuana. In furtherance of addressing safety concerns, the law specifically states that employers may prohibit an employee from performing any task while under the influence of marijuana which the employer deems life-threatening to either the employee or other employees. Employers may also prohibit employees from performing any duty that could result in a public health or safety risk while under the influence of medical marijuana.

Employers in West Virginia should update drug policies to address the new law. No person will be issued a card until July 2019 so you have some time, but like with all things, while it is fresh in your minds it is a good idea to have counsel review and revise your policies.

A notable case caught our eye recently coming out of the United States District Court for the Middle District of Florida filed by the Equal Employment Opportunity Commission (“EEOC”). Namely, The EEOC sued CRST International, Inc. (“CRST”) claiming that it, among other things, violated the Americans with Disabilities Act (“ADA”) by failing to accommodate and retaliating against a prospective truck driver.

The new driver allegedly requested the use of a prescribed emotional support animal to mitigate post-traumatic stress and mood disorder. CRST purportedly told the new driver simply to leave his dog at home and refused to provide an accommodation, citing unbendable company policies, and effectively rescinded his employment offer. Unfortunately, usually these policies must bend, or at the very least the possibility explored.

While the CRST case is in its early stages, and no court decisions have yet been issued, this complaint serves as a great illustration of just how far reaching the disability discrimination laws are. Here many employers would scoff or summarily dismiss the seemingly unworkable request of having a service animal in a trucking business. However, the CRST complaint reminds us of the potential disability accommodations that employers must consider and make. Regardless of the nature of the requested accommodation, the employer is, at the very least, required to engage in the interactive process with the employee and determine what, if any, reasonable accommodations can be made. Otherwise, you may end up on the wrong side of an EEOC lawsuit alleging ADA retaliation and failure to accommodate.

Please remember that when an employee or prospective employee requests a workplace disability accommodation in order to perform his or her job, an employer generally must consider the accommodation and, if it can be implemented without undue hardship, it must be granted. Anytime an accommodation request is received, never dismiss the request out-of-hand. Make sure to talk to your in-house human resources department or legal department, or involve outside counsel if necessary, to determine your legal obligations. Also, note that your state or local laws may provide additional protections beyond the ADA.

Aside from whistleblower and highly offensive sexual harassment cases, there may be no claim that elicits the protective instincts of the average jury more than disability discrimination cases, especially where the disability is cancer-related. Employees with disabilities who are terminated without demonstrable cause often are seen as suffering the double indignity of dealing with whatever hardship their disability imposes and the termination of their employment because of it. Adept attorneys paint a picture of the employer kicking an employee when he’s down and when you place the outcome of such a case in the hands of average Americans (i.e., a jury), and you have the makings of a big verdict.

Such was the case of Axel v. Fields Motorcars of Florida, Inc., where a Mercedes dealership terminated a 71-year-old used car and wholesale manager, Michael Axel, who had been diagnosed with kidney cancer in 2010. Following surgery, the cancer metastasized to his lungs. Axel elected to undergo an experimental treatment that came with very unpleasant side effects described as “tremendous” stomach pain, sores in his mouth, and sores on his feet. Evidence was introduced that Axel’s supervisor expressed frustration with Axel because, among other reasons, he was “not getting real doctors treatment” but “other holistic or crazy things.”

The dealership terminated Axel in 2014, allegedly for making misrepresentations in 2004 on paperwork needed to obtain an auto auction access card for his son, a non-employee of the dealership who occasionally assisted Axel in transporting used cars to the local auto auction. The son was not accused of misusing this authority other than to move vehicles. In fact, he was employed by the dealership at the time of his father’s termination. The misrepresentation on which the termination allegedly was based was discovered ten years after the fact, leading to the decision to terminate. Pre-trial submissions did not reveal much in the way of other performance deficiencies by Axel.

The jury apparently rejected the dealership’s stated reason for the termination as pretext for disability discrimination. It found that Axel was fired because of his disability in violation of the Florida Human Rights Act and awarded Axel $680,000 in lost wages and benefits, $600,000 for emotional distress, and $3.22 million dollars in punitive damages. Notably, despite allegations of stray remarks reflective of possible age animus, the jury found that there was no age discrimination in the decision to terminate Axel’s employment.

A runaway verdict? Perhaps, but verdicts of this nature and magnitude seem to occur more frequently in disability discrimination cases. This jury’s rejection of the age discrimination claim demonstrates a thoughtful and discerning assessment of the evidence presented. This case serves as a reminder that disability discrimination cases stand in a class of their own and must be handled with utmost care and discretion.

Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

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